For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.
This is a felony-murder case. Appellant, Robert Loray, and two others, Stanley Wilson and George Cooper, were convicted of a first degree murder with a recommendation of life imprisonment. They were tried in one trial on two separate indictments; one, for felony (robbery) murder, N.J.S. 2A:113-1; the second, for robbery, N.J.S. 2A:141-1, of the same victim in the same incident. The jury did not consider the robbery indictment, the court having instructed such to be unnecessary if guilt was found on the murder charge. Loray appeals as of right. R.R. 1:2-1(c). Wilson and Cooper have not joined in this appeal.
On February 24, 1961, at approximately 11:20 P.M., a patrolman was sent to Essex and James Streets, Newark. Upon arriving there, he saw a man lying face up at the northwest corner. The man had a deep gash in his forehead and appeared to have been severely beaten. The patrolman detected no breathing. The man's coat was ripped, and part of it was found on the northwest side of the street, the remainder on the northeast side. The coat pockets were turned inside out. The Police Emergency Squad, upon arrival at 11:26 P.M., attempted resuscitation, but was unsuccessful. At 11:35 P.M. he was pronounced dead by a doctor.
A resident of 32 James Street, directly opposite the corners of James and Essex Streets, testified that at approximately 11:15 P.M. he turned off his television, went downstairs, and saw his dog at the front window aroused by something. Upon
looking out, he noticed a man in a black raincoat and hat looking up and down Essex and James Streets. He then saw two other men cross briskly from the northeast corner to the northwest corner and stoop over a person lying on the sidewalk. These two men started going through the pockets of the man lying there. Believing the man to be intoxicated, the resident yelled, "Let that man alone," whereupon the two men leaning over the victim fled down Essex Street; the other in the raincoat fled up James Street. He telephoned the police and upon their arrival at the scene told them that he had seen "three negro males, two 6-feet tall, with no description as to the height of the other one, one wearing a red sweater, and one wearing a black raincoat, with a short brim hat."
There was no other witness. At 11:40 P.M. Wilson, who was wearing a red sweater, was stopped in the area, questioned, and arrested. He implicated two others whom he knew only by their nicknames: "Blue" [Loray], and "Coop" [Cooper].
Loray and Cooper were arrested the next morning. Shortly after his arrest, Loray was taken to the room at Police Headquarters where Wilson was completing his statement concerning the happenings of the previous night. A copy of the statement was given to Loray, a copy to Wilson, and a copy to a detective named Leonardis. Wilson's statement was read in the presence of Loray while Loray followed the reading with the copy given to him. Upon completion of the reading, Leonardis asked Loray if what Wilson said in this statement about Loray was true. Leonardis testified that Loray replied "that everything was the truth except for the fact where he [Wilson] said he [Loray] punched and kicked the man. He said he didn't punch or kick the man." Wilson's statement accused Loray of planning the robbery, assaulting the victim, taking money from the victim, and splitting the proceeds with the other two.
Loray was 16 years and 21 days old on the day of the mugging. He was initially charged with juvenile delinquency in the Juvenile and Domestic Relations Court. The cause was
transferred by that court to the prosecutor for criminal prosecution under R.R. 6:9-7.
Within two hours after he was taken into custody, Loray began to give his own statement and it was completed within a short time. Loray contends that his statement was not voluntary and should have been excluded from evidence. Loray attacks the voluntariness of his statement on the ground that he was physically abused and threatened by police officers while being driven to police headquarters and while there.
Confessions are competent evidence, in a constitutional sense, only when voluntarily given. While all relevant circumstances (including the age of the defendant) must be considered by the trial court in determining its admissibility before a confession may be admitted in evidence, State v. Tassiello, 39 N.J. 282, 293 (1963), the State must sustain its burden of establishing that the defendant's will has not been overborne and that the fundamental fairness requirement of the due process clause has not been violated. State v. Fauntleroy, 36 N.J. 379, 395 (1962). This test governs regardless of the method of coercion, be it physical violence or psychological pressure. State v. Wade, 40 N.J. 27, 35 (1963).
The trial court followed the prescribed guides in determining the issue. It heard the witnesses concerning Loray's arrest, interrogation, and the making of the statement. The trial court decided, in its discretion, to take the testimony on admissibility in the presence of the jury. State v. Walker, 33 N.J. 589, 592 (1960). While such testimony was being submitted, the trial court correctly informed the jury that if the court admitted the statement in evidence, it would be solely for the jury to decide whether or not it was voluntary or involuntary and that if the jury decided it was involuntary, the jury would have to disregard it entirely.
Testifying on the issue of admissibility, Loray stated that, while riding in back of the police car ...